Month: May 2018

Devra Davis, who was a Lead Author of chapters of the Intergovernmental Panel on Climate Change—the group awarded the Nobel Peace Prize with Al Gore in 2007, recently sent a letter to the Lafayette City Council regarding the proposed sports field.

It’s worth reading the full letter, but here are some of the points made in the letter:

I have reviewed the April 2018 Deer Hill Park and Sports Field assessment prepared by Placeworks. The following issues with the methodology are apparent:

Ultra fine particulate matter that contains toxic heavy metals that are especially hazardous to young developing brains and bodies was not considered;

No onsite monitoring data was utilized, either as a basis for the report or as a check on the proposed result

Available PM 2.5 data from comparable sites monitored by air districts in the Bay Area or southern California was likewise not consulted

The reported conclusion of increased PM 2.5 of 0.44 micrograms/M3 is extremely low and does not appear reliable for a location with vehicle traffic reportedly of 12,000, 36,000, and 185,000 per day on the north, east, and south- this figure should have been verified and compared with on site or available offsite PM 2.5 monitoring data.

The study does not include a focus on exposure of children to particulate matter and other vehicle generated contaminants during peak periods such as after-school weekdays use when commuter traffic on the nearby corridors is at a peak

The averaging methods applied understate the risk considerably. Thus, an annual average for the site was calculated that appears to include weekends and intraday periods when traffic is low necessarily resulting in a lowered result

Further, there is no analysis for asthma or diminished lung capacity. In particular, to the extent the report assumes that high intensity children’s activities for 2 hours per day is safe in this environment, no medical or regulatory authority is cited; to the contrary, available international and U.S. medical studies contradict this conclusion.

It is unfortunate that the discussion has been framed as one of debating or awaiting proof of harm to our children, before taking steps to prevent exposing them to conditions that have been established in extensive studies to place them at risk. The idea that you would put a field for children to play in an area where the adjacent residences are required to have filters for the air inside the house, and warnings to residents of exposure to particulate matter if the windows are opened, is one of the most unwise and imprudent instances of urban planning I have ever encountered.

Some voters are confused by comments that if Measure L is rejected the developer might resubmit the original 315 apartments application that was suspended on 1/13/14. Instead of being distracted by this vague threat, voters should evaluate the Homes project on the merits of its traffic impacts, view impacts, and $3M of city money for a children’s play area and sport field on a major traffic corridor with air quality issues. The city has the legal authority to deny that project as detailed below.

The apts application was never approved. It was suspended in 2014 when the city certified the apts EIR with 13 significant unavoidable environmental impacts including 5 public health and safety impacts. The California housing accountability act, government code (“govt. Code”) 65589.5(d)(2) authorizes denial of apartments for adverse impacts on public health and safety.

The controlling general plan designation for the property became low density single family residential 2 units/acre (“LDSFR”) on 8/10/15, which does not allow apts. If resubmitted, the apts application would require a general plan amendment, which is a legislative act under govt. Code 65301.5 and subject to another voter referendum.

The developer argues there is administrative professional office zoning (APO) on the property from before 2015, but this is temporary and unenforceable. Per govt. Code 65860(c). The zoning is subordinate to the LDSFR general plan designation. The city council is already making plans to amend the APO zoning to low density residential if measure L is rejected by the voters.

A 2014 tolling agreement and processing agreement would not allow the city to disregard state law and the strict deadlines of the permit streamlining act which expired on the apts application in 2014.

Approval of Measure L will establish precedents on traffic impacts and hillside development that will adversely affect the city’s residents on future land use applications.

The city breached a mandatory duty to voters and improperly interfered with the referendum process.

Future outcomes in litigation cannot be predicted with absolute certainty. All that can be done is to make an evaluation of legal issues based on the strengths and weaknesses of the various arguments. In the case of Measure L, the arguments being put forward about apartments are weak. Voters should decide how to cast their vote based on the merits of the Homes project and not be misled.

In April supporters of Yes on L published a new HRA (Health Risk Assessment) from the same company that did the original one. An independent analysis of that HRA has uncovered major flaws with the methodology, enough to make it invalid.

According to this analysis, the methodology is inaccurate in methodology and in omissions and the health risk to children understated by a large factor, large enough to change the outcome of the report. There were several problems including:

Air Quality used was average of an entire day, though children would be using the field from 3-6pm, when traffic is much heavier.

Children were assumed to be standing in place, when they would in fact be exercising vigorously.

Ultrafine Particulate Matter was completely ignored.

Correcting the errors results in a determination that the field is unsuitable for the intended activities.

Recently, the City Attorney provided misleading guidance regarding the previously proposed Terraces project and if it could be resurrected if Measure L is defeated. Our attorney responded to that letter (previously discussed here).

On 5/14 she provided an updated summary, but there were no substantial differences and all of the errors in reasoning for the previous summary still remained.

Supporters of the “Homes at Deer Hill” proposal attempt to scare voters into believing that a “No” vote on Proposition L will result in the Terraces project with 315 apartments on the sensitive parcel between Deer Hill Road, Pleasant Hill Road and Highway 24. The truth, however, is that the apartment project has never been approved; and it would face the same extreme obstacles as before if the developer elects to resurrect it — including but not limited to the People’s referendum power.

There have been many questions raised regarding the housing bills passed in 2017 and 2018. Here then is an attempt to answer those questions.

SB 35 provides for various housing reports, and expedited approval of multifamily projects if a locality that does not meet assigned housing goals fails to submit “an annual housing element report …for at least two consecutive years”. However, even that only applies to projects for which “at least 75 percent of the perimeter of the site adjoins parcels that are developed with urban uses”. Deer Hill meets 0 percent of this requirement. Deer Hill is not part of Lafayette’s multifamily housing element map. Also per city website, “Lafayette’s Housing Element was certified by the State of California on March 26, 2015” for 2014-2022. In other words, Lafayette is in compliance and Deer Hill wouldn’t fall within SB 35 even if the city wasn’t.

The other new laws cited mainly fall within the 2018 version of the Housing Accountability Act, Government Code 65589.5, addressed below.

The Deer Hill 44 Homes project has the Level of Service F traffic impacts, road closure, and steep roundabout that has been mentioned, no way to sugarcoat that. As for the air quality issue for the children’s play area 160 feet from PHR (36,000 cars/day), and sports field 200 feet from PHR and 50 feet from Deer Hill Road (12,200 cars/day), the air quality risk to children is undeniable. The developer’s consultant has put out a report disregarding and failing to report on fine to ultrafine Particulate matter smaller than 2.5 microns, the type that penetrates into lung tissue, the bloodstream, and the body’s cells and blood/brain barrier according to James Leach, recipient of Lafayette’s Award of Environmental Excellence, and the Bay Area Air Quality Management District’s 2016 “Planning Healthy Places” [very small particulate matter “less than 2.5 microns…can travel deep into the lungs and and enter the bloodstream”; “children and infants are among the most susceptible…”; recommends “restricting sensitive land uses near heavily trafficked freeways/roadways”]. The Legislature restricts (Ed.Code 17213) public school district from placing new schoolsites within 500 feet of busy traffic corridors; the Ed. Code definition of schoolsite includes “playgrounds, athletic fields”.

For any reader trying to make sense of the developer’s claims on purported air safety- the key is to look for reference to particulate matter smaller than 2.5 microns, the point below which the PM enters the bloodstream, cells, and brain per Mr. Leach, the BAAQMD, etc. You won’t find it disclosed in the developer’s report, who completely disregards this health risk. That’s how they try to claim the air is safe for active children playing near tens of thousands of cars. Similar near roadway sites monitored by BAAQMD for PM 2.5 test into the “Unhealthy for Sensitive Groups” monthly category, and they aren’t monitoring yet for below PM 2.5 which may be worse.

So what chance of 315 apartments coming back? The developer “suspended” that application on 1/13/14 in the face of major opposition and the City Council’s certification of the Apts EIR with 13 significant unavoidable environmental impacts. Included were 2 unavoidable air quality impacts and 3 unavoidable traffic impacts, literally “jammed conditions” with “unacceptable” delays to emergency responders. Even with the 2017 amendments, the Housing Accountability Act, Govt. Code 65589.5(d)(2), authorizes denial of multifamily for significant unavoidable (SU) public health and safety impacts. These SU impacts were certified by the City. Other claims by the developer and city attorney (who recommended breaching the city’s mandatory duty to voters in 2015, per the Court of Appeal) are also incorrect. The apts application lapsed in 2014 under controlling state law, and if “resubmitted” is subject to all new city ordinances and the Low Density Single Family Residential general plan designation adopted in 2015, under Govt. Code 65950(a)(1), 65957, 65943. Apartments would require a general plan amendment and be subject to another referendum (65301.5).

If you don’t like the 1224 vehicles/day and spending $3M of city money for a children’s play area and sports field by a busy traffic corridor, you should feel free to vote the way you want. There are better field locations and after June 5 the city could approve a more common sense project with less traffic impact to gridlocked PHR.